Wrong, as a Matter of Law

The media and the public love a reformer. This may explain the reaction this week to a 13-page letter from FBI agent Coleen Rowley criticizing the investigation of Zacarias Moussaoui.

Rowley has been portrayed by national publications like Time magazine in almost breathless terms as a cross between Martin Luther and Annie Oakley.

What is astonishing is how little of her memo actually has been read or quoted beyond its most sensational suggestions, like the notion that Rowley and her colleagues might have been able to prevent one or more of the Sept. 11 attacks.

Rowley’s criticism of the FBI largely turns on disagreement over the meaning of probable cause. Rowley insists that there was probable cause to secure a search warrant for Moussaoui’s computer and personal effects. The FBI headquarters disagreed, and it was right.

On Aug. 15, 2001, Moussaoui was arrested by the Immigration and Nationalization Service on a charge of overstaying his visa. At that time, the Minnesota office only had an “overstay” prisoner and a suspicion from an agent that he might be a terrorist because of his religious beliefs and flight training. If this hunch amounted to probable cause, it is hard to imagine what would not satisfy such a standard.

Rowley believes that the FBI was wrong because a warrant was ultimately signed on Sept. 11 after the attacks. That warrant contained the same information that was deemed insufficient before the attacks.

Rowley rejects the notion that the attacks in any way “improved or changed” the basis for probable cause. In her view, if probable cause existed on Sept. 11, it must have existed before Sept. 11.

This is simply wrong as a matter of law. The attacks were obviously material to establishing probable cause against Moussaoui.

Rowley also places importance on a French report that “confirmed [Moussaoui’s] radical fundamentalist Islamic” affiliations. This report was extremely vague and discounted by the FBI and other intelligence and foreign agencies.

Finally, Rowley notes that suspicions in her Minnesota field office were magnified by Moussaoui’s refusal to permit a search. But Moussaoui’s assertion of a constitutional right cannot be used as a “signal [that] he had something to hide.”

What emerges from the memo is a disturbing view of constitutional standards.

Rowley states that she believed that agents should not have been deterred in their interrogations by Moussaoui’s invocation of his right to remain silent and to have counsel. Instead, she suggests that a limited “public safety exception” should be expanded to virtually negate those protections of the 6th Amendment.

The Rowley memo does contain some new and important information. One such fact relates to the use of a controversial secret court that is little known to most Americans.

It has long been suspected that agents have used the Foreign Intelligence Surveillance Act court in cases where they lack evidence to secure a constitutional warrant. Viewed by many as unconstitutional, the FISA court allows the government to search citizens without a showing of probable cause. The citizens never know that their homes and computers were the subject of a search.

Under federal law, this court cannot be used as an alternative to a conventional warrant simply because there is insufficient evidence to meet the constitutional standard.

Rowley, however, confirms this unlawful practice. When it was determined that the Minnesota office lacked probable cause, she suggested that it simply file for a FISA secret search as a tactical option.

We are gradually shifting searches from the 4th Amendment process to a secret court that is neither mentioned nor consistent with the Constitution. This is the one aspect of the memo that has received no attention in the media or in Congress.

The Rowley memo is now being used to support reforms announced Wednesday by the FBI. Ironically, these “reforms” cut back on “reforms” implemented after such scandals as the Richard Jewell and Wen Ho Lee investigations. Those abusive investigations involved hunches that were allowed to mutate into full investigations with disastrous consequences.

Not only do such investigations produce terrible abuses, but they diminish the agency’s effectiveness and resources in pursuing more substantial leads.

Some of Rowley’s criticisms of the FBI incompetence are well- established. There is need for structural reform, but we should not allow the FBI to “reform” itself into a prior image.